The Legal Protection of Privacy and Freedom of Expression, Part 1 – Dominic Crossley

12022016

In her enormously impressive paper “Privacy, democracy and freedom of expression“, Annabelle Lever poses the question: must privacy and freedom of expression conflict? I would like to begin by addressing this question. My answer to that is no, they need not always conflict and in my experience a failure to respect privacy can have a direct impact upon freedom of expression.

Two personal examples:

The newspaper sting operation. There is rarely much sympathy for politicians caught up in lobbying or corruption scandals. Often these politicians (including those who have sought my help) are caught out by a hidden camera operated by journalists pretending to be part of a far eastern investor looking to make an influential appointment. Putting aside the characterisation of the exchanges and conduct of the journalists, I have witnessed politicians becoming increasingly wary and unwilling to engage openly with the public or indeed business as a result of, or for fear of, being caught up these stings. In my view we need to radically reconsider our expectations of being entitled to private information concerning politicians if we wish for normal human beings to a) run for office and b) be able to express themselves effectively when they reach office. This week has seen David Cameron revealed as looking into private education for his children and George Osborne under pressure to disclose his tax return. If we expect our politicians to have no privacy, we should not be surprised when we find that those seeking election are a strange breed of other-worldly narcissists.

The dissemination of private images. If any of you have Googled me in advance of today to find out who the hell the solicitor is, you will know that I have acted for Max Mosley, who was well known through his career in motor-sport. His case, unfortunately for him, has been paradigm in so many different ways. The misery of having to cope with private images being published and then forever available by search engines has curious unforeseen consequences. In his case, the consequences included inhibiting his work promoting road safety across the world. No matter what your view of Mr Mosley may be, it cannot be doubted that his work in this field has saved countless lives. Even for a man as confident and eloquent as Mr Mosley the effect of the privacy invasion means that whoever he meets, wherever in the world, he has to wonder whether they have searched his name and been taken to the images that first emerged in the News of the World article published almost exactly eight years ago.

Although I had been involved in some interesting libel and privacy cases before being instructed by Max Mosley, it is inevitably his case that thrust me to the fore of the debate. In that case, like so many before the High Court in London, the public interest argument for publication, which would allow Article 10 to trump Article 8, was paper-thin.

Every newspaper responded to Mosley’s victory with howls of derision. The Sun headline screamed: “Freedom takes a spanking” and Paul Dacre used his speech to the Society of Editors that year to attack the judge as amoral.

“Some revile a moralising media others, such as myself, believe it is the duty of the media to take an ethical stand. Either way, it is a choice but Justice Eady – with his awesome powers – has taken away our freedom of expression to make that choice.”

I have never quite understood the ethical value of a front-page sex expose. But the truth of this case is that the News of the Wolrd’s already weak case collapsed at trial such that even as a pessimist, I could not see how our case could fail. Whilst I have happily taken the plaudits for succeeding in this case, the reality is that it was no triumph and did little to further privacy rights. Why?

The Mosley case emphasised the futility of the legal mechanisms to protect privacy. Not only were the damages awarded (although a record at the time) far too small to amount to an effective deterrent but, as we argued later in Strasburg, the absence of any obligation to notify in advance of publication renders subsequent litigation largely futile and, in any event, beyond the means of 99% of the population.

It is currently in the interests of any newspaper to publish without notifying the proposed subject, given that whilst many would consider an injunction or threat of an injunction if notified in advance, most people would rather crawl under a proverbial rock after being subject to a tabloid sting than pour money into high profile litigation. Litigation is likely to be considered adding insult to injury. Mosley has spoken of the remedy of Court proceedings for privacy like asking a doctor to treat a broken leg, only to have the doctor break the other leg in the process.

The Mosley case followed earlier High Court battles that saw the courts establish the balancing exercise between Article 10 and Article 8, in particular the House of Lords decision in Campbell v MGN ([2004] 2 AC 457). In Lord Hoffman’s judgment he makes it clear that “both are vitally important rights. Neither has precedent over the other”.

But newspaper commentators saw the courts as favouring privacy over freedom of expression and developing the law contrary to the intention of parliament. In fact the courts were doing exactly what was envisaged by parliament. Lord Irvine, the Lord Chancellor said in the House of Lords debate that privacy law would be better established by Judges because they would have to balance Article 8 and Article 10 in the circumstances presented to them.

The courts developed a two stage process: first it must decide whether the subject matter of the threatened publication would give rise to a “reasonable expectation of privacy” and then weigh up Article 8 with countervailing rights, usually Article 10. These considerations are most intense in the context of privacy injunctions and it is the rise of these injunctions, in particular for Premier League footballers, which made privacy an increasingly dirty word.

It is worth noting that there were plenty of examples of unsuccessful injunctions. Sir Fred Goodwin failed to maintain his injunction after the judge decided that there was a public interest in revealing his affair with his colleague given the importance of a public discussion into whether it was appropriate for a chief executive of a major bank to have an affair with a senior colleague. Poor Sir Fred got little sympathy.

Even more tenuously, in my view, Steve McLaren the hapless England football manager, also failed to secure an injunction on the basis that he was public figure who was expected to apply high standards of conduct. These injunction attempts and in particular those by John Terry and Ryan Giggs established privacy as the preserve of the wealthy and over-sexed.

This would all change as a result of the phone hacking scandal and what was revealed of the press’ own conduct. No longer could Dacre and his editor friends have exclusive use of the moral high-ground. Just as the Mosley/NGN trial was concluding, James Murdoch and his team at News International were paying huge sums of money to secure what they hoped would be a confidential settlement of the first civil claim for phone hacking. The revelation of this scandal and emergence of a wealthy, organised and determined group of campaigners meant that, for the first time in my lifetime, the media reform debate was not being controlled entirely by the newspaper lobby. The story about Milly Dowler and her family being hacked meant that this campaign found support amongst politicians and the public.

Whilst some of my clients, who gave evidence of the effect of press-misconduct, could be (wrongly) dismissed as “whinging celebrities” some of the most startling evidence was from those with no public profile before being victims of crime, such as the Watsons from Glasgow and Kate and Gerry McCann.

All of those who gave evidence did so despite the trauma of being witnesses in such a high-profile event and (for those in the public eye) the likelihood of further media hostility. Even though we were restrained from referring to the evidence of phone hacking, given the imminent criminal trials, the evidence of press misconduct was sufficiently compelling for the Judge to give a damning verdict and suggest a significant new basis for press regulation.

Although Leveson’s proposed regulator was never likely to have a pre-publication role or replace the Court’s function regarding privacy injunctions a recognised regulator as proposed by Leveson would have played an important role holding newspapers to account and upholding its code on privacy.

IPSO, the major publisher’s own regulator set up in defiance of the judge’s recommendation and the cross-party agreement does little to inspire confidence in complainants. It seeks to regulate its members, the worst offenders amongst national newspapers, whilst the FT, Guardian and Independent prefer to go it alone. Impress, a Leveson compliant regulator is applying for charter recognition and it will be interesting to see whether large numbers of publishers join Impress and benefit from the protections afforded to participants of a recognised regulator. Given my role in Leveson, I have a close interest in Impress and for those interested in this subject I highly recommend its efforts despite the odds stacked against it.